FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
Petition of complaint is filed U/s 35 of CP Act, 2019.
The fact of the case in brief is that the complainants are the original tenant in respect of the premises in question as mentioned in the petition of complaint. The OPs 1 to 6 are the land lord and the OP-7 is a developer in respect of the premises No. 305, 306a, 306b, Banku Bihari Charterjee Street, Kolkata-700042, PS-kasba, the landowners (OPs 1 to 6 ) and the developer (OPs No. 7) entered into agreement to develop the premises No. 305, 306A, 306B. Accordingly, they approached the complainants being the original tenant in respect of the premises in question. The complainants have agreed and intend to purchase a flat in the ground floor of the proposed building against consideration measuring about 500 sq. ft. carpet area consisting of 2 bed room or kitchen, 2 bath rooms, one drawing cum dining room, with the proportionate share of land to new building of the aforementioned premises.
This is further stated by the complainants that at the time execution of agreement for sale dated 15.12.2013. The complainants paid the total agreed consideration amounting to Rs. 101/- in respect of flat in question to the OP-7 with an assurance that the OPs shall handover the said flat in question to the complainants in complete habitable condition within the month of December, 2017.
The complainants further stated that thereafter construction of the said building has already been completed but in spite of completion of said construction work of the project and flat in question, the OPs deliberately avoid to handover the possession of the flat in question to the complainants even on repeated request. Now the complainants become apprehensive that they being cheated about their hard and money and it is also apprehended by them that the OPs will sell out the flat in question to the third parties violating the terms and condition of the agreement for sale. It is further stated by the complainant that present market price of the flat in question is about Rs. 26,25,000/-. Thereafter the complainants served a demand notice through their conducting notice dated 23.12.2020 and the OPs refused to receive the said letter on 24.12.2020 then without having any other alternative the complainants have filed this case with a prayer to give direction to the OPs to execute the registered deed of conveyance in favour of the complainants in respect of the flat in question as per terms and condition of the agreement for sale dated December 2013.
The complainants further prayed to give direction to the OPs to pay a sum of Rs. 3,00,000/- as compensation for harassment negligence and deficiency in service on the part of the OPs and also to pay the shifting charges to the complainants @ Rs. 12,000/- per month on and from the shifting till date with monthly compensation @ Rs. 15,000/- per month for the period for January 2018 to February 2021 till handing over the possession of the flat in question as per terms and condition of the agreement for sale along with litigation cost of Rs. 25,000/- and or pay the market value of the said flat at about of Rs. 26,25,000/- with all interest, litigation cost, compensation.
The OPs even on receipt of the notice, of this case did not appear before this commission and to file the WV. Hence, the case did run ex parte against the OPs vide order No. 13 dated 06.01.2023 passed by this commission.
In view of the facts and circumstances stated above, points of consideration are as follows-
- Is the case maintainable?
- Are the complainants a consumer?
- Is there any deficiency in service on the part of the OPs?
- Are the complainants entitled to get relief as prayed for
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.
On a close scrutiny of material on record and also considering the position of law it is revealed that this commission has got both the jurisdiction to try this case. The case is filed within the period of limitation and the complainants have sufficient cause of action to file the case.
From the unchallenged testimony of the complainants, it is revealed that the complainants were the tenants in the premises in question as described in the petition of complaint under the OPs 1 to 6 who are the landowners. OP-7 is the developer in respect of the premises in question.
From the materials on record, as well as unchallenged testimony of the complainants, it is held by the commission that the complainants have entered in to an agreement for sale with the OPs for purchasing the flat in question measuring about 500 sq. ft. carpet area consisting of 2 bed room, 1 drawing cum dining room, one kitchen, one bathroom lying and situated at old premises No. 305, 306A and new premises 306B at Banku Bihari Charterjee Street, Kolkata-700042, PS-kasba at a consideration of Rs. 101/-. The OPs agreed to handover the self flat in question in habitable flat in question with in 15 December, 2017 but till the date of filing of the case the OPs neither handover the possession of flat in question nor execute the registered sale deed of conveyance in favour of the complainants even on repeated request rather they intend to sale the flat in question to a third party at a high consideration which compelled the complainants to come before this commission for getting relief. Such conduct of the OPs that they intend to avoid the complainants and did not pay any heed to their repeated request to handover the vacant possession to flat in question and to execute the registered sale deed in respect of flat in favour of the complainants. They neglected the complainants. Thus, their conduct should be considered as the deficiency in service.
As and when the complainants have entered into agreement for sale with the OPs to purchase the flat in question measuring about 500 sq. ft. in the ground floor of the premises in question at a consideration of Rs. 101/- only since then the complainants should be termed as consumer and the OPs are the service provider.
on the basis of discussions made above as well as on the basis of unchallenged evidence of the complainants, this commission is of view that being a consumer within the ambit of CP Act, 2019 the complainants could be able to prove their case against the OPs service provider beyond all reasonable doubt and are entitled to get the relief as prayed for, at the same time as the OPs have violated the terms and conditions of the agreement for sale dated 15.08.2013. There is sufficient deficiency in service on their part and are liable to be compensated.
In sum, the complainants could be able to prove their case beyond all reasonable doubts and are entitled to get relief as prayed for.
All the points are thus decided favourably.
The case is properly stamped.
Hence,
Ordered
The case be and the same is decreed ex parte against the OPs 1 to 7 in part with cost.
The complainants do get the decree in part as prayed for.
The OPs are directed to execute a registered deed of conveyance in favour of the complainants either jointly or severally in respect of the flat in question as per agreement for sale dated December, 2013 within 45 days from the date of this order.
The OPs are further directed to pay compensation of Rs. 50,000/- to the complainants either jointly or severally within 45 days from the date of this order for harassment, mental pain , agony and deficiency in service .
The OPs are further directed to pay litigation cost of Rs. 10,000/- to the complainants either jointly or severally and they are also directed to comply the each and every terms and conditions as per agreement for sale within 45 days from the date of this order.
If the OPs failed to comply the decree within stipulated period, the complainants would be entitled to get simple interest @ 9 % p.a. on the entire decreetal amount from the date of default till realisation of the entire amount and if the OPs failed to comply the decree within the stipulated period, the complainants would be at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
